BVA9501329 DOCKET NO. 93-06 616 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to an increased (compensable) evaluation for residuals of a dog bite to the fourth and fifth fingers of the left hand. ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The veteran served on active duty from August 1968 to December 1990. This appeal arises from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a February 1993 statement, the appellant withdrew her appeal as to the issue of entitlement to service connection for left shoulder tendonitis. CONTENTIONS OF APPELLANT ON APPEAL Essentially, it is warranted that the RO erred when it denied service connection for a bilateral hearing loss and an increased (compensable) rating for residuals of a dog bite to the fourth and fifth fingers of the left hand. Specifically, the veteran gives a history of exposure to flight line and jackhammer noise while stationed at an air base in Japan in 1973. This exposure, which was on a daily basis for a period of approximately five months, resulted in bilateral hearing impairment. As for her service-connected left hand disorder, she reports that she still does not have full use or strength in the fourth and fifth fingers. She experiences pain in the hand when she holds it in the same position for an extended period of time, such as while driving. Her use of computer keyboards and typewriters is limited. Due to the lack of flexibility and strength in the service-connected fingers, she mainly uses the thumb and second and third fingers of her left hand in all daily activities. She maintains that range of motion testing of the fourth and fifth fingers was not conducted at the recent VA examination. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence does not support the grant of service connection for bilateral hearing loss or an increased (compensable) evaluation for residuals of a dog bite to the fourth and fifth fingers of the left hand. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claims has been developed. 2. Current hearing impairment does not meet VA regulations for service connection for hearing loss disability. 3. Residuals of a dog bite to the fourth and fifth fingers of the left hand are currently manifested by complaints of pain and lack of strength in the affected fingers, but the scar is well- healed and nontender, and there is no muscle loss or loss of motion of the fingers of the left hand. Decreased grip strength in the left hand, in comparison to the right, is noted. CONCLUSIONS OF LAW 1. A bilateral, high frequency hearing loss is precluded from service connection as current hearing status meets pure tone and speech recognition criteria. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.102, 3.303(b), 3.307, 3.309, 3.385 (1993). 2. The criteria for a compensable evaluation for residuals of a dog bite to the fourth and fifth fingers of the left hand have not been met. 38 U.S.C.A. § 1155 (1991); 38 C.F.R. §§ 3.102, 3.321, 4.7 and Part 4, Diagnostic Codes 7805, 7804, 7803, 5219, 5223, 5227, 5155 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran's claims are well-grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, she has presented claims which are plausible. Further, we are satisfied that all relevant facts have been properly developed. There is no indication that there are additional records which have not been obtained which would be pertinent to the veteran's claim. Thus, no further assistance is required to comply with the duty to assist as mandated by 38 U.S.C.A. § 5107(a). Godwin v. Derwinski, 1 Vet.App. 419 (1991); White v. Derwinski, 1 Vet.App. 519 (1991). Service Connection for Bilateral Hearing Loss In cases before the Board regarding entitlement to service connection for hearing loss, 38 C.F.R. § 3.385 (1993) defines the level of defective hearing which must be clinically established in order to classify the defective hearing as a disability for which service connection can be granted. The Board is bound by this regulation. 38 U.S.C.A. § 7104(c) (West 1991). Service connection for impaired hearing shall not be established when hearing status meets pure tone and speech recognition criteria. Hearing status shall not be considered service-connected when the thresholds for the frequencies of 500, 1000, 2000, 3000 and 4000 Hertz are all less than 40 decibels; the thresholds for at least three of these frequencies are 25 decibels or less; and speech recognition scores using the Maryland CNC Test are 94 percent or better. 38 C.F.R. § 3.385 (1993). The service medical records show that audiological tests from 1968 to 1985 did not show hearing loss disability. These records include the following results from an audiological evaluation from July 1987. Pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 0 0 5 LEFT 5 5 10 5 5 At 6000 Hertz, the right ear showed a pure tone threshold of 15 decibels. The left ear showed a pure tone threshold of 55 decibels. At time of retirement examination in November 1990, audiometric testing showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 0 5 10 15 LEFT 5 15 15 5 15 At 6000 Hertz, the right ear showed a pure tone threshold of 40 decibels, while the left ear showed a decibel level of 75. A mild, bilateral hearing loss was noted. Post service VA audiometric testing in September 1992 showed the following: HERTZ 500 1000 2000 3000 4000 RIGHT 15 10 15 20 35 LEFT 20 20 20 20 30 Speech recognition scores were recorded at 100 percent in the right ear and 96 percent in the left ear by the Maryland CNC word list. The audiologist summarized that the results of testing showed a mild, bilateral, high frequency sensorineural hearing loss with good speech recognition ability in both ears. It is the determination of the Board that the evidence related above does not support the grant of service connection for bilateral hearing impairment. As noted previously, 38 C.F.R. § 3.385 precludes service connection in cases where the degree of defective hearing is not of the level for which service connection can be granted. In this case, 38 C.F.R. § 3.385 precludes service connection for hearing impairment of either ear because the veteran does not have hearing loss disability in either ear as defined in the regulation. Current audiometric test results clearly show hearing impairment that does not meet the criteria for service connection. Increased Evaluation Disability evaluations are based upon the average impairment of earning capacity as determined by a schedule for rating disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1993). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. §§ 4.2, 4.41 (1993). An evaluation of the level of disability present also includes consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment, and the effect of pain on the functional abilities. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (1993). An Increased (Compensable) Evaluation for Residuals of a Dog Bite to the Fourth and Fifth Fingers of the Left Hand A brief history of the events preceding this appeal as to this issue is as follows: Service connection for the left hand disorder was established by rating action in April 1991. A noncompensable evaluation, effective from January 1, 1991, was assigned. The veteran appealed this determination, but it was confirmed and continued upon rating decision in October 1992. The appeal continues. Under Diagnostic Code 7805, scars may be evaluated on the basis of any related limitation of function of the body part which they affect. Diagnostic codes concerning body parts affected by the service-connected dog bite of the fingers of the left hand include 7804 which provides for a 10 percent evaluation for superficial scars which are tender and painful on objective demonstration. Similarly, a 10 percent evaluation would be warranted for superficial, poorly nourished scars with repeated ulceration. Diagnostic Code 5219 provides for a 20 percent evaluation when unfavorable ankylosis of the ring and little fingers is demonstrated. The code explains that ankylosis is considered unfavorable when the ankylosis prevents flexion of the tips of the fingers to within 2 inches (5.1 cm.) of the median transverse fold of the palm. Under Diagnostic Code 5223, favorable ankylosis of the ring and little fingers of either hand warrants a 10 percent evaluation. Ankylosis is considered to be favorable when the ankylosis does not prevent flexion of the tips of the fingers to within 2 inches of the medical transverse fold of the palm. Diagnostic Code 5227 provides a noncompensable evaluation for favorable or unfavorable ankylosis of the ring or little finger of either hand. The code provides that extremely unfavorable ankylosis of either finger will be rated as amputation under the provision of Diagnostic Code 5155. Ankylosis is considered to be extremely unfavorable when all of the joints of the finger are in extension or in extreme flexion, or when there is rotation and angulation of the bones. The medical evidence of record includes a VA orthopedic examination from September 1992. The veteran related that she had incurred a dog bite to the ulnar aspect of the left hand in 1982. This injury was without any known nerve, artery, or bone damage, but she had been hospitalized for secondary cellulitis. At the time of this examination, she reported an asymptomatic residual scar, but described some feeling of lack of strength in the fourth and fifth fingers. She also said that she experienced pain in the area of the old injury with prolonged gripping. On examination, the left hand showed a small scar which was about 1/4 inch in diameter. It was described as well-healed and nontender. Otherwise, her hand appeared "grossly normal." She had no muscle mass loss, and there was full range of motion of all of the digits of the left hand. Gripping strength was decreased in the left hand as compared to the right. X-rays of the left hand were essentially negative. The diagnosis was old dog bite, left hand, intermittently symptomatic. While this evidence shows subjective complaints of pain and loss of strength in the left hand, objective findings principally involve loss of grip strength in the minor extremity. There is no objective evidence of current ankylosis or of limitation of motion or muscle loss of either digit affected and the scar is essentially asymptomatic. The veteran alleged that range of motion testing was not conducted, but we note that the examiner indicated that there was full range of motion of the digits of the left hand. We concede, as is demonstrated by the clinical record, that the disability is intermittently symptomatic. However, none of the identifiable signs or symptoms associated with the left hand disability is included among the criteria necessary to establish entitlement to a compensable rating under the criteria set forth. Accordingly, the noncompensable rating currently in effect is deemed appropriate. Extraschedular Evaluations The evidence above does not suggest that the veteran's service- connected left hand disorder presents such an exceptional or unusual disability picture so as to render impractical the application of the regular schedular standards, so as to warrant the assignment of an extraschedular evaluation under 38 C.F.R. § 3.321(b)(1). The veteran has not been frequently hospitalized for treatment of this condition, and we do not find marked interference with employment. In this regard, she has claimed interference with use of a keyboard because of the finger disability, but neither limited motion nor functional loss apart from grip weakness is documented. In the Board's view, there is not demonstrated sufficient functional loss supported by adequate pathology as to render inadequate the application of the regular schedular standards. Also, we do not find that there is a question as to which of two evaluations shall be applied as to the veteran's left hand disorder. ORDER Service connection for bilateral hearing loss is denied. An increased (compensable) evaluation for residuals of a dog bite to the fourth and fifth fingers of the left hand is denied. NANCY I. PHILLIPS Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.